SHANMUGARAJAH SELLAPPAH v. NESARATNAM SHANMUGARAJAH, 2018 FC 198

Date: 20180221 Docket: IMM-1601-17 Citation: 2018 FC 198 Ottawa, Ontario, February 21, 2018 PRESENT: The Honourable Madam Justice Heneghan BETWEEN:SHANMUGARAJAH SELLAPPAH AND NESARATNAM SHANMUGARAJAHApplicantsand THE MINISTER OF CITIZENSHIP AND IMMIGRATIONRespondent JUDGMENT AND REASONS [1] Mr. Shanmugarah Sellappah and Mrs. Nesaratnam Shanmugarah (the “Applicants”) seek judicial review of the decision of animmigration officer (the “Officer”) dated March 18, 2017, refusing their request for Temporary Resident Permits (“TRPs”) as availablepursuant to

section 24 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, (the “Act”). [2] The Applicants are citizens of Sri Lanka. They entered Canada in 2013, holding TRPs, for the purpose of visiting relatives. [3] In 2015, Mr. Sellappah learned that he was suffering from a medical problem for which surgery was a recommended treatment. Hedid not undergo the surgery. [4] The Applicants applied renewal of their TRPs.

The Officer refused their application on the basis that the purpose of the originalTRPs had been satisfied, that is the Applicants’ travel to Canada to visit family, and that they could seek admission into Canada, fromtheir home country, under other provisions of the Act. [5] A decision regarding the issuance of a TRP involves the exercise of discretion and is reviewable on the standard of reasonableness;see the decision in Huang v. Canada (Citizenship and Immigration), 94 IMM. L.R. (3d) 213 at paragraph 12. The Supreme Court ofCanada described the content of the reasonableness standard of review in Dunsmuir v.

New Brunswick, 2008 SCC 9 , [2008] 1S.C.R. 190 at paragraph 47. That standard requires that a decision be transparent, justifiable and intelligible, and falls within a range ofpossible, acceptable outcomes that are defensible in respect of the facts and the law. [6] Subsection 24(1) of the Act is relevant and provides as follows: "Temporary resident permit " " " "Permis de séjour temporaire " "24

(1) A foreign national who, in theopinion of an officer, is inadmissible or doesnot meet the requirements of this Actbecomes a temporary resident if an officer isof the opinion that it is justified in thecircumstances and issues a temporaryresident permit, which may be cancelled atany time. " " " "24

(1) Devient résident temporairel’étranger, dont l’agent estime qu’il estinterdit de territoire ou ne se conforme pas àla présente loi, à qui il délivre, s’il estime queles circonstances le justifient, un permis deséjour temporaire —

titre révocable en touttemps. " [7] The Applicants plead that they are prime candidates for the positive exercise of discretion to allow the renewal of the TRPs. Theyhave the renewal of the TRPs.

They have the financial resources to support their continued stay in Canada as well as the emotionalsupport of their daughter and her family in Canada. [8] On the other hand, the Minister of Citizenship and Immigration (the “Respondent”) argues that the discretion pursuant to subsection24(1) of the Act is to be exercised only in exceptional circumstances, highlighting the words "“it is justified in the circumstances”", hesubmits that the personal circumstances of the Applicants do not meet that level. [9] As noted by Justice Shore in Farhat v.

Canada (Citizenship and Immigration), 2006 FC 1275 , [2006], 302 F.T.R. 54 atparagraph 2, the issuance of a TRP is part of an "“exceptional regime”". Evidence is required of something more than inconvenience toan applicant to justify the issuance of such a privilege. [10] I acknowledge that the personal circumstances of the Applicants including the physical infirmities of Mr. Sellappah invitesympathy.

However, I am not persuaded that the Officer erred in refusing their application for renewal of the TRPs. [11] In the result, this application for judicial review is dismissed, there is no question for certification arising. JUDGMENT in IMM-1601-17

JUDGMENT in IMM-1601-17 THIS COURT’S JUDGMENT is that the application for judicial review is dismissed, there is no question for certification arising. "E. Heneghan" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-1601-17 STYLE OF CAUSE: SHANMUGARAJAH SELLAPPAH AND NESARATNAM SHANMUGARAJAH v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: toronto, ontario DATE OF HEARING: november 22, 2017 JUDGMENT AND reasons: HENEGHAN J.

DATED: February 21, 2018 APPEARANCES : Robert Israel Blanshay For The ApplicantS Leanne Briscoe For The Respondent SOLICITORS OF RECORD : Robert Israel Blanshay Professional Corporation Barristers & Solicitors Toronto, Ontario For The ApplicantS Attorney General of Canada Toronto, Ontario For The Respondent